Overview
In September, the Federal Trade Commission filed an ex parte action against PCCare247 Inc. and other defendants, alleging that they operated a scheme that tricked consumers into spending money to fix non-existent computer problems. Last week, Judge Engelmayer granted the FTC's motion pursuant to Federal Rule of Civil Procedure 4(f)(3), to serve five India-based defendants in that action via email and Facebook. Citing cases from an SDNY decision authorizing service via Telex in 1980 (which observed that we "no longer.. live in a world where communications are conducted solely by mail carried by fast sailing clipper or steam ships”) to a recent Ninth Circuit decision authorizing email service (which suggested that federal courts have been “unshackled” from “anachronistic methods of service” and permitted “entry into the technological renaissance,”) Judge Engelmayer held that alternative service by email and Facebook was reasonable.
The Court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means. But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.In holding that such service satisfied due process, the court also noted that the five defendants already had actual notice of the lawsuit, and had themselves "zealously embraced" that same technology by running an online business, communicating with customers via email, and advertising their business on their Facebook pages.